Amoco Chemicals Corp. v. Sutton, 5004

• Decision Date: 28 April 1977
• Docket Number: No. 5004,5004
• Parties: AMOCO CHEMICALS CORPORATION et al., Appellants, v. Dorothea Mae SUTTON et al., Appellees.
• Court: Texas Court of Appeals

Page 459

551 S.W.2d 459

AMOCO CHEMICALS CORPORATION et al., Appellants, v. Dorothea Mae SUTTON et al., Appellees.

No. 5004.

Court of Civil Appeals of Texas, Eastland.

April 28, 1977.

Rehearing Denied May 26, 1977.

Mills, Shirley, McMicken & Eckel, Preston Shirley, V. W. McLeod, McLeod, Alexander, Powel & Apffel, Galveston, for appellants.

Ronald D. Krist, Krist, McConnico & Gunn, Houston, for appellees.

RALEIGH BROWN, Justice.

This premises liability case is a consolidation of three suits against Amoco Chemicals Corporation, owner and occupier of the premises, for the deaths of Robert Milton Sutton and Aquiles Salinas caused by their entrance into a nitrogen filled reactor and for personal injuries to Charles Marzka. Sutton and Salinas were employees of Arsco, Inc., a sandblasting and painting contractor under contract with Amoco to sandblast three reactors located in the "ultracracker unit" at Amoco's Texas City refinery. Marzka, an employee of Catalyst Services, Inc., another contractor working on Amoco's premises, was injured in attempting to rescue Sutton and Salinas from one of the reactors. New York Underwriters Insurance Company and Highlands Insurance Company, workmen's compensation carriers for the employers intervened. Amoco, seeking indemnity, impleaded Arsco, Inc., as a third party defendant pursuant to a written contract containing an express indemnity provision. Based on a jury verdict, judgment was rendered against Amoco for the benefit of the survivors of Sutton, Dorothea Mae and Gregory Scott Sutton; the surviviors of Aquiles Salinas, Esperanza and Elizabeth Ann Salinas; Marzka; and intervenors, New York Underwriters Insurance Company and Highlands Insurance Company. Amoco was awarded judgment over and against Arsco for indemnity. Amoco files a limited appeal and Arsco appeals. We reverse and render in part and affirm in part.

Sutton and Salinas met their deaths and Marzka sustained injuries in reactor 101-D, the middle of three reactors known as 100-D, 101-D, and 102-D. The reactors were identical in appearance and size being approximately eighty feet in height, twelve feet in diameter and situated thirty to sixty feet apart. They were joined together at the top by a common catwalk. A temporary portable elevator had been installed by Amoco near 101-D.

The large covers on top of the reactors had been removed by use of a crane in order that workers could gain access to the reactors. Smaller temporary manway covers had not been affixed to the top of either reactor. To enter a reactor, a ladder which reached from the top of the reactor down several floors within the reactor was used.

Mac Flores, a Catalyst foreman, who had worked in reactor 101-D all day, noticed at about 4:00 p. m. small fires erupting in the reactor. At a meeting between Catalyst employees and Amoco employees, attended by Marzka, it was agreed the heat in 101-D was too bad to continue working on it. Catalyst was to bring a life support van the next morning and resume working on 101-D. Such a van is used when the chance of fire is so great that it becomes necessary to work under a nitrogen purge, which removes all oxygen from the air. Steve Tholer, an Amoco employee, came to work at 4:00 p. m. and was instructed to purge 101-D with nitrogen. He did so sometime after 4:00.

Sutton and Salinas having worked a full day shift were requested by their supervisor, James R. Reyer, to work overtime. They returned to the ultracracker unit and went by elevator to the top of the reactors.

Sometime after 4:30 p. m., Amoco employees discovered Sutton and Salinas in reactor 101-D. Marzka and Flores, as requested by Amoco, retrieved Sutton and Salinas. In the process, Marzka's fresh air hose came loose and he was pulled out of the reactor by Flores. Sutton and Salinas were asphyxiated. Marzka's injuries were caused by exposure to an oxygen deprived atmosphere.

Amoco argues the trial court erred in granting judgment for plaintiffs and intervenors because as a matter of law (1) Sutton and Salinas were not invitees when they entered the reactor and thus Amoco breached no duty to them; (2) Amoco was absolved from any and all liability for the deaths of Sutton and Salinas and the injuries to Marzka because J. R. Reyer, the supervisor of Sutton and Salinas had actual knowledge and appreciation of the dangers associated with entering the reactor and such knowledge was imputed to Sutton and Salinas; and (3) Amoco was absolved from liability because Sutton was adequately warned the reactor contained nitrogen and of the dangers associated with entering the reactor under those conditions and since Sutton was the immediate foreman of Salinas such warning was imputed to Salinas.

Amoco concedes Sutton and Salinas were invitees as to the general area of the ultracracker unit. It contends, however, their status on entering reactor 101-D was reduced from that of invitees thereby absolving Amoco of liability.

Considering the matter of who is an invitee, the court in Texas Power & Light Company v. Holder, 385 S.W.2d 873 (Tex.Civ.App. Tyler 1964, writ ref. n. r. e.) said "An invitee is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or the occupant or for their mutual advantage. 65 C.J.S. Negligence § 43(1), p. 508.

An implied invitation is one which is held to be extended by reason of the owner or occupant doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property are consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interests. 60 C.J.S. Motor Vehicles § 172, p. 510.

A servant or employee of another person who enters the premises on the business of his master, in which business the master and the owner or occupant have a mutual interest occupies the status of an invitee. Snelling v. Harper (Tex.Civ.App.), 137 S.W.2d 222; 60 C.J.S. Motor Vehicles § 174, p. 515."

Amoco points to the rule enunciated in Burton Construction & Shipbuilding Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954):

". . . A person may be an invitee as to certain parts of the premises but not as to others. The rule is stated in 30 Tex.Jur. 863, Negligence, Sec. 180: 'The owner or occupant may be held liable only where it appears that the victim sustained the injury while using a part of the premises which was designed for his accommodation or use. * * * A recovery is not sustainable where the evidence leads to the conclusion that "it could not have been reasonably anticipated" that he would attempt to go to the place in which the injury occurred.' . . ."

The extent of the area included by the invitation is discussed in 62 Am.Jur.2d, Premises Liability, § 46 as follows:

". . . The area of invitation will, of course, vary with the circumstances; it extends to all parts of the premises to which the purpose may reasonably be expected to take the invitee, and to those which are so arranged as to lead him reasonably to think that they are open to him. Otherwise stated, a possessor of land is subject to liability to another as a business visitor for such bodily harm as he sustains while upon a part of the land upon which the possessor gives the injured person reason to believe that his presence is permitted or desired because of his connection with the business or affairs of the possessor, and which as such is held open to the injured person as a business visitor."

The test applied to determine whether or not a person is an invitee at the exact place of injury is whether the owner of the premises should have anticipated the presence of someone such as the plaintiffs at that particular place on the premises. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

In the instant case, one of the express purposes for which the Arsco employees were working in the area of the ultracracker unit was to sandblast the three reactors. To accomplish this, entry into each reactor was necessary.

Amoco's safety manual required posting barriers, signs or tags, or blowing a whistle during or before the purge of nitrogen commenced. Amoco operators were to station one or two persons at the catwalk at the top of the reactors to prevent entry of any individuals during purging operations. None of these measures were followed.

The reactors were identical in size and appearance. The decision to purge was made shortly before a shift change, a time when one to two hundred people were working in the area of the ultracracker unit. Amoco knew the dangers of purging operations.

The jury concluded Sutton and Salinas were invitees of Amoco at the time and place of their deaths in reactor 101-D. Under the circumstances presented by the evidence we cannot say as a matter of law their entry into reactor 101-D was not reasonably foreseeable by Amoco. As occupier of the premises, Amoco owed Sutton and Salinas the duty as stated in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963):

"The 'no duty' doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there...